ATHENS, Alabama - An Athens attorney is asking the court to dismiss a capital murder charge against his client, Joel Moyers, who told authorities he was firing a warning shot in September when his bullet went through a pickup truck and killed a young man.

Dan Totten filed a request Tuesday in Limestone County Circuit Court claiming the murder charge did not use the word "intentional" when describing the shooting death of Brandon Hydrick.

Moyers was indicted in December on charges of capital murder, reckless murder, intentionally shooting into an occupied vehicle and recklessly shooting into an occupied vehicle.

The charges of the indictment give the jury a choice to find Moyers guilty of acting intentionally or recklessly, but Moyers cannot be guilty of both, said District Attorney Brian Jones.

"There's no doubt he shot him and there's no doubt he killed him," Jones said. "The jury's just going to have to decide, did he intend to kill him or did he recklessly kill him?"

Jones said the charge of capital murder implies the act was intentional but after Totten's challenge, he amended it to add the word "intentional."

"Moyers' defense team is making a procedural challenge to the indictment," Jones said. "We had already taken this issue up with Judge Woodroof. "The State's position is that Count 1 as written clearly lists all the elements to prove capital murder. To eliminate any issues for appeal, we have addressed their objection in a motion to amend the indictment to state explicitly that count one alleges intentional murder whereas Count 2 explicitly alleges reckless murder."

Hydrick, 26, was killed Sept. 29 on Fennel Road in rural Limestone County after a bullet Moyers admitted he fired went through the tailgate of a truck and into the passenger's seat where Hydrick was riding. His brother, Ryan Hydrick of Harvest, was driving. Moyers told authorities he thought the driver and passenger in the truck were "acting suspiciously" as they drove along the road at about 3 a.m. and he fired a warning shot into the air from his semi-automatic weapon. Moyers, 52, of Cullman, was living in a mobile home his mother owns at the time.

Limestone County Sheriff Mike Blakely said the trajectory of the bullet through the tailgate, backseat and passenger seat indicate the weapon was not fired into the air.

Totten previously asked the court to set bail rather than holding Moyers in Limestone County Jail without bond. After his indictment, Moyers took an overdose of pills and was in intensive care in Cullman for five days before being transferred to Limestone County Jail, where he remains.